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The Spirit Of The Treaty

'The Spirit of the Treaty'

In many of the deliberations set down by the Waitangi Tribunal this `spirit' was referred to and clarified.

`the Tribunal itself pronounced firmly that `the spirit of the Treaty
transcends the sum total of its component written words and puts narrow and
literal interpretations out of place''
`the Treaty was not a finite contract but a developing social
contract.'
Orakei and after...
` major references were to the idea of partnership, the duty of partners to
each other, the need to safeguard the honour of the Crown and the Treaty as a
basis of an evolving social contract.'
  • give effect to the expressed intentions of the parties of the Treaty
  • bear in mind the Treaty's overall aim and purpose 
  • treat neither text as superior but to give considerable weight to the much
    more numerously signed Maori version ( this was supported by the American
    Supreme Courts `indulgent rule' by which treaties with indigenous
    peoples should be construed in the sense in which those people would have
    understood them) 
  • apply the `contra proferentum rule' by which ambiguities should be
    construed against the party framing the provision in question
    
    From the texts of the treaty, and especially from the meaning of the Maori
    version, the tribunal concluded that 
  • the kawanatanga ceded to the Crown meant in the context less than
    sovereignty, although the cession of sovereignty was `implicit from the
    surrounding circumstances' 
  • rangatiratanga and mana are inseparable so that Maori received the
    impression that they would retain full customary control of their lands 
  • the Crown and the Maori people were partners in the Treaty and as
    such were obliged to act reasonably and in good faith towards each other
    
    ` it was possible that the courts could apply the principles of the Treaty even
    when it was not invoked in the relevant statute, because those principles had
    become part of the fabric of society, of the way in which New Zealander
    thought about itself.'
Claims to the Waitangi Tribunal p75 p76 p77 p78 p81. W H Oliver. 
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